Motion to Reopen

[MariaAndreas 9]

On April 28, 2015, USCIS denied my application, I-485, and offered me to file Motion to Reopen, I-290B.

I entered the U.S. on May, 2014, as a K1 fiancee. We got married in July, 2014, and I applied for my first Green Card as a spouse of the U.S. citizen. I passed Biometrics examination, got the Employment Authorization & Advance Parole in October, 2015. We had our interview on March 31, 2015. The interviewer said we need to wait for the GC for about 1,5 months because they need to “study our papers concerning my K1”…

In the mid-April we got RFE from USCIS requesting my husband's divorce papers (issued 5 years ago). He brought them non-certified copy of that document.... As a result, on April 28, 2015, our I-485 was denied because of this reason, and despite we live together for almost one year as a family in one house, I was given voluntary deportation, which means I was ordered to deport “as soon as possible” from home... My EA & AP card was automatically cancelled. I was lucky I have relatives who could host me for so long time in my home country, so, at least I didn't stay in the street... But it's just unbelievable, blatant situation!

However, in their letter, USCIS offered me to file the form I-290B, Motion to Reopen, within 30 days, with “new facts and evidences supported by Evidence of Eligibility at the time of filling underlying application” which was denied.

On May 5, 2015, the right divorce paper was finally obtained! Thus, we filed Motion to Reopen. The NOA on it was dated May 15, 2015.

Citing the uscis web site, "Q. When should I expect to receive a decision on a motion?

A. Although some cases may take longer, USCIS tries to adjudicate motions within 90 days. If you do not receive a decision on your motion within that time, you may contact the National Customer Service Center ..."

50 days have already passed, and there is no changes on our case. What should we do: to sit and wait for other 40 days passing, living apart, or better we should write about ours case to the senator? Can we make some complain for USCIS, which is giving us much damage, material and moral, keeping the family far apart for nobody knows how long? Whom should we write/call to make them work and let us live together again?

Thank you everybody for any suggestions!

[Pitaya 2,576]

It may be worth contacting the CISOMB: http://www.dhs.gov/about-citizenship-and-immigration-services-ombudsman

Edited July 5, 2015 by Pitaya

[Darnell 8,478]

are you currently inside the USA or outside of the USA ?

[Boiler 43,397]

Sounds like you are in Russia?

[TBoneTX 43,020]

I have relatives who could host me for so long time in my home country, so, at least I didn't stay in the street...

What should we do: to sit and wait for other 40 days passing, living apart

USCIS, which is giving us much damage, material and moral, keeping the family far apart for nobody knows how long

Whom should we write/call to make them work and let us live together again?

It seems pretty clear that the OP is in Russia.

[Ebunoluwa 6,136]

So instead of the adjudicator saying he needs a certified copy of the divorce decree he denied the case and wanted you to self deport ? Why did you not contact an attorney right then and there to file a motion to re open or intervene otherwise ?

[NancyNguyen 1,657]

A simple RFE and got deportation order in couple weeks? This is just crazy.

[MariaAndreas 9]

are you currently inside the USA or outside of the USA ?

Outside. Since the officer said it would take no less than a month and a half for my GC to come, we decided I go to visit my parents in Russia. I clearly remember how in the end of the interview, we specially asked the officer if I can enter the country with my Advance Parole while GC is not on hands yet. She said, "Yes, it's all right." By the way, we showed her that divorce paper in our folder we brought for the interview. She looked at it and after just closed the folder, gave it back to us and said everything is OK. Nothing seemed to go wrong, we didn't even expect any RFE come in two weeks after the interview. Our plan was to use my AP for coming back, or, in case GC comes, my husband would send it to me by express mail delivery.

Now my hubby is here with me :-) but soon he has to go back home, and I stay alone.

I left after the interview because, first of all, we were sure everything would be OK, and in 1,5-2 months I will sure to have a GC. Second, I was going to start college soon (specially waited for 1 year to avoid non-resident fee), and, since I could use my AP, I could visit my family who were unable to visit us in USA. I planned to start college as soon as I return home, while my GC would be in its way to us. Finally, that date tickets were much cheaper than later.

To crown the whole, the official USCIS web site says:

"Unless USCIS directs otherwise, the filing of a motion to reopen and/or reconsider (or of a subsequent application or petition) does not delay the execution of any decision in a case or extend a previously set departure date." 8 C.F.R. § 103.5(a)(1)(iv).

Since resently, filing a motion from abroad is allowed by law (Fifth Circuit’s decisions in Garcia Carias v. Holder and Lari v. Holder of September 27, 2012). Actually, I prepared all papers, and my spouse sent them from our home address in USA.

[MariaAndreas 9]

So instead of the adjudicator saying he needs a certified copy of the divorce decree he denied the case and wanted you to self deport ? Why did you not contact an attorney right then and there to file a motion to re open or intervene otherwise ?

We filed Motion to Reopen as soon as we got my man's certified copy of his 5 year old divorce from a court. Uscis started considering our Motion 50 days ago.

Both attorneys we spoke with didn't seem knowledgeable but greedy. What to expect if a lawyer doesn't know a difference between filing for AOS for K1 holders and that for other visa types who concluded marriages here? He asked many times again and again why we didn't file I-130 when married.... and that that's why we were denied. Stupid.

Good lawyer would cost us an arm and a leg. Unfortunately, we are not so rich, and we additionally now lost income because I lost my job in USA as a result of that immigration decision.

I prepared the Motion and all supporting documents by myself using Uscis instructions and good people's help with their advice. Thank them very much for their support! Feeling fee for Motion is $630 plus DHL delivery services from me (Russian Ural) to our home address in California.

We intervened timely and now presumably have to wait. However, I feel if we continue sitting and waiting, Uscis will not remember about us! How would you recommend to intervene additionally (without spoiling everything of course)?

Thank you all very much for giving your attention!

[MariaAndreas 9]

A simple RFE and got deportation order in couple weeks? This is just crazy.

I agree with you. Crazy and unbelievable.

I am sure it has something to do with my citizenship. Very discriminate policy, just veiled "na...sm". I will not say exactly how I call this extremely biased attitude to some nation, but you understood. This is disgusting and unforgivable.

Edited July 6, 2015 by MariaAndreas

[Jawaree 717]

Motions to re-open should be backed up with good solid evidence why the case should

be re-open especially when one is outside the US (You seem to be doing well so far)

You could have asked DHS (your jurisdiction) to join the motion to re-open, hopefully

you will get a positive answer, there is no time limit on decisions. Bear in mind you

can move on to BIA in 30 days (if you do not win) Best to send over-nited to keep

track. If they don't give you relief move on to the circuit .

Many ppl use AP to travel , but it is not 100% guaranteed one has to be allowed in, many

atty discourage their clients from using it unless its death or medical emergencies. Most

ppl do get back in but there are a few that is not so lucky or run into a mean CBP who

can deny you entry, even atty Scott don't encourage clients to use AP..just because they can

Have your husband seek support from his congress-person or Senator

Edited July 6, 2015 by Jawaree

[Darnell 8,478]

Outside.

Thank you. Apologies, it wasn't clear to me.

I hope a human at USCIS not decide that you abandoned all, because you left the USA. I think the dates on what happened when will be important on your case.

You wrote a narrative here, I suggest you contact the Ombudsmans' office about it, as the IO that you two saw seemingly messed up - it really was enough for him/her to SEE the certified copy and then keep the photocopy of that divorce decree. Or, if he was a smartie, he would have had the A-File in front of him, noting the certified copy that was submitted on interview day for the K-1 visa. Still, 'determination of divorce status' will be a sticking issue - ie when did the IO actually review what was in your file, and when did he accept the photocopy after seeing the certified copy.

[Ebunoluwa 6,136]

Have you contacted a senator ?

This is really strange.

[Hypnos 6,576]

Not sure a MTR will be successful.

You need to show that USCIS made an error either in law or policy. If you did not present a certified copy of your husband's divorce decree then the mistake was yours.

It routinely takes ~6-12 months to process an appeal. You may wish to consider withdrawing the appeal and simply refilling for a CR-1 spousal visa, since it will probably take a similar amount of time, and given the facts as you have outlined them I'm doubtful your appeal will be upheld.

Edited July 6, 2015 by Hypnos

[MariaAndreas 9]

You could have asked DHS (your jurisdiction) to join the motion to re-open, hopefully

you will get a positive answer, there is no time limit on decisions.

Could you please clarify how to ask DHS to "join the motion"? I have no idea about it, but it seems interesting to know.

I suggest you contact the Ombudsmans' office about it, as the IO that you two saw seemingly messed up - it really was enough for him/her to SEE the certified copy and then keep the photocopy of that divorce decree.

The strange thing is that IO told us on the interview they needed those 1,5 months to obtain the folder with my K1 case and stock them altogether with my GC case... Something like that. But if they got my K1 case, then the certified divorce paper is there! I don't understand, are they blind, or they just clutch the straws to destroy our life?

Have you contacted a senator ?

Not yet. I don't think a senator will help us now when 90-day processing time has not passed. Do you think, we should try now?

(Off topic: my spouse is from Cyprus too :-) )

Edited July 6, 2015 by MariaAndreas